The Issue The issue is whether Respondent abused its discretion in denying Petitioner’s request for an exemption from disqualification for employment in a position of trust.
Findings Of Fact AHCA is the state agency charged with protecting vulnerable persons, such as Medicaid recipients and the Medicaid program, and, in that capacity, it maintains discretion to approve or deny requests for exemption from disqualification. Petitioner is seeking to work as a certified nursing assistant. Petitioner’s employment goals require her to have a Level 2 criminal background screening to ensure she does not have any disqualifying offenses to prohibit her from working with AHCA-regulated facilities. Petitioner’s background screening of February 5, 2020, identified the following five criminal offenses: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting executive officer with minor injury. By letter dated February 5, 2020, AHCA notified Petitioner that she was disqualified from employment due to the disqualifying offense of “04/22/2017 Sheriff’s Office San Diego, Obstruct/Resist Exec Off.” The letter also informed Petitioner that she may be eligible to apply for an exemption from disqualification and how to apply. On or around February 7, 2020, Petitioner submitted a request for exemption from disqualification and supporting documentation to AHCA. By letter dated February 18, 2020, AHCA denied Petitioner’s request for exemption. On April 6, 2020, Petitioner submitted a second Application for Exemption (“exemption package”) to AHCA. Petitioner’s exemption package contained documentation including employment history, education/training, a criminal history report, arrest reports, investigation reports, a California Department of Public Health investigation report, and a 12-month suspension of nurse assistant certification. By letter dated April 7, 2020, AHCA denied Petitioner’s request for exemption, stating Petitioner is not eligible for the exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: ELDER/DEP ADULT CRUELTY, Case number CN3772399 Petitioner contested the denial and requested a formal administrative hearing. AHCA acknowledged the disqualifying offense error in the denial letter of April 7, 2020, and corrected its denial letter. The corrected denial letter dated September 8, 2020, deemed Petitioner not eligible for an exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: Corrected Disqualifying Offense: 04/22/2017 SHERIFF’S OFFICE SAN DIEGO, RESISTING AN OFFICER (California Penal Code section 148,) Case Number CN372399. Hearing At hearing, Petitioner testified about the incident that occurred on April 22, 2017, while working at Fallbrook Skilled Nursing (“Fallbrook”) in California. Petitioner explained that three police officers came to her job at Fallbrook while she was working her shift and asked to speak to her outside the facility about allegations of resident abuse. Petitioner testified she refused to leave the facility upon multiple instructions from the police to leave. Petitioner admitted that after an officer told her several times he was going to arrest her, she told the police “you don’t have a right to arrest me.” Petitioner detailed how she did not allow the police to put handcuffs on her because she believed the reports about her were lies. Ultimately, the incident escalated--Petitioner testified that when she did not allow the police to handcuff her, the three police officers put her on the ground, one put his knee on her back, and she was handcuffed. Petitioner weighed approximately 125 pounds when arrested. After the police got Petitioner outside, the three police officers picked her up, put her in the police car, and took her to jail. Petitioner was charged with: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting an officer, all stemming from the same April 22, 2017, incident. The elder abuse and trespass charges against Lalanne were dismissed. On January 30, 2018, Petitioner proceeded to a bench trial before a judge on the resisting an officer charge. At trial, Petitioner was found guilty and convicted of “count 1 PC 148 (a)(1), resisting an officer” in case number CN372399. That same day, the judge sentenced Petitioner to three years’ probation2 and community service for the resisting an officer conviction. Subsequently, the County of San Diego, California, probation department provided Petitioner a certificate of completion for completing her three days of public work service on or about September 13, 2018. Petitioner testified that she made a mistake when she did not listen to the officers and it was a lesson for her. She also testified that she believed there was no harm to the police and her offense is a misdemeanor not a felony. Vanessa Risch (“Risch”), AHCA’s operations and management consultant manager in the Background Screening Unit, testified that because Petitioner’s offense occurred in California, AHCA had to evaluate the nature of the offense, what occurred during the incident, and the final outcome of the case to determine the correlating criminal offense in Florida. Risch testified that she contacted the California Clerk of Courts to validate the outcome of Petitioner’s case and probationary status. Risch testified that, through her investigation, she confirmed that Petitioner’s probation started on January 30, 2018, and terminates on January 30, 2021. Risch also detailed how AHCA converted Petitioner’s California resisting an officer charge to a Florida resisting arrest with violence felony offense, after determining the officers in California had to force Petitioner’s body to the ground after Petitioner did not comply with the officers’ repeated instructions. AHCA concluded that Petitioner’s actions of opposing the three 2 The compelling evidence at hearing supports Petitioner’s probationary sentence. The undersigned finds that Petitioner failed to testify honestly and forthright regarding her three-year probationary period. First, Petitioner denied knowledge of any probationary period even though probation was listed on the sentencing documents Petitioner presented as Exhibit 1. Also, Petitioner’s Exhibit 3 is from the probation department. Additionally, Petitioner testified that her lawyer told her she had probation, which confirms Petitioner’s knowledge of her probationary period. officers is equivalent to the criminal offense of resisting arrest with violence in Florida. Risch testified that resisting an officer with violence is a disqualifying felony offense. Risch testified further that AHCA ultimately concluded that Petitioner was not eligible to apply for an exemption. Risch explained that Petitioner’s current probationary status prohibited her from being eligible to apply for an exemption because eligibility starts three years after Petitioner’s probationary period for the disqualifying felony offense is terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration, enter a final order denying Shaddainah Lalanne’s, request for an exemption from disqualification. DONE AND ENTERED this 9th day of December, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 2020. COPIES FURNISHED: Shaddainah Sherly Lalanne Apartment 206 6609 Woods Island Circle Port St. Lucie, Florida 34952 (eServed) Katie Jackson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 7 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Bill Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shevaun L. Harris, Acting Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
Findings Of Fact On or about July 7, 1981, Respondent, Douglas Earl Nalls, M.D. (Nalls), submitted an application for licensure by endorsement to the Petitioner, Board of Medicine (Board). As part of his application for licensure, Nalls was required to disclose to the Board any criminal conviction, any discipline imposed against his license to practice medicine, information related to military service, and other matters specified in the license application. Nalls answered in the negative to questions regarding any criminal convictions and any discipline by other Boards or entities, and Nalls did not reveal any military service. Nalls' Florida medical license was originally issued on or about December 14, 1981, by endorsement. Nalls' license to practice medicine in Florida became void and of no force and effect on or about October 28, 1985, because Nalls failed to demonstrate to the Board that he had continuously practiced medicine in Florida for a minimum of one year during the first three years after issuance of the license by endorsement as required by Section 458.313(3), Florida Statutes (1981). The Board was unaware of Nalls' military status at the time the license was deemed to be void and of no force and effect. On or about July 1, 1987, Nalls was found guilty by jury trial of two counts of child abuse and two counts of third degree sexual offense in the State of Maryland. The charges related to Nalls' thirteen year old stepdaughter for whom Nalls had the care, custody or responsibility for supervising. On or about August 27, 1987, Nalls was sentenced to three years incarceration, of which all but four months were suspended. On or about July 9, 1987, Nalls submitted an application for licensure to the District of Columbia's Board of Medicine. Nalls did not reveal his arrest or conviction to the District of Columbia's Board of Medicine. On or about September 7, 1989, Nalls' license to practice medicine in the District of Columbia was revoked. In early 1991, prior to February 1, 1991, Nalls contacted the Board to reinstate his license by endorsement. Nalls was required to submit minimal information to the Board related to his request for reinstatement. He presented documentation of his military service and discharge. He was not questioned concerning prior convictions or revocations of his medical license in another jurisdiction. On or about February 7, 1991, Nalls was notified that the Board approved his request for reinstatement. Nalls became eligible to practice medicine in Florida on or about May 28, 1991, when his request for reinstatement was completed. On or about April 1, 1991, Nalls was hired as a staff physician at the Workers' Compensation Medical Center located in Pompano Beach, Florida. On or about November 25, 1991, the Board received Nalls' licensure renewal for the license renewal period for January 1, 1992 through January 31, 1994. Nalls listed his business address as Workers' Compensation Medical Center, 150 South Andrews Avenue, Pompano Beach Florida 33069. Twelfth Avenue is also known as South Andrews Avenue. Nalls' last date of employment with the Workers' Compensation Medical Center was April 14, 1992. After April 14, 1992, the Board sent an inquiry to Nalls at the address listed for the Workers' Compensation Medical Center. The administrator at the Workers' Compensation Medical Center sent a handwritten note to the Board stating that Nalls no longer worked at Workers' Compensation Medical Center. On January 24, 1994, Nalls advised the Board that he wished to change his address since the time of his last renewal and listed his new primary place of practice as The Ideal Clinic, 155 N.W. 167th Street, Suite 202, North Miami Beach, Florida 33169.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered in regard to DOAH Case No. 93- 2704 finding Douglas Earl Nalls, M.D. guilty of violating Section 458.331(1)(b), Florida Statutes, dismissing the counts relating to violation of Sections 458.331(1)(x) and (ll), Florida Statutes, imposing a $5,000 fine, and revoking his license to practice medicine in the State of Florida. In regard to DOAH Case No. 94-1129, it is RECOMMENDED that a final order be entered, finding Douglas Earl Nalls, M.D. guilty of violating Section 458.331(1)(c), Florida Statutes, imposing a $5,000 fine and revoking his license to practice medicine in the State of Florida. DONE AND ENTERED this 3rd day of February, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1995.
Findings Of Fact At all times pertinent to the allegations contained herein, the Criminal Justice Standards and Training Commission, (Commission), was the state agency responsible for the certification of law enforcement officers in Florida. Respondent, Kenneth E. Beck, was a police officer, certified by the Petitioner, and employed by the City of Clearwater Police Department. In September, 1988, Joyce Ann Cooper Horten, currently of Easley, S.C., was residing in Clearwater, Florida. At that time, she was approximately 16 years old. On the evening in question, two of her friends, a boy and girl, had "egged" a neighbor's apartment and the neighbor called the police. In response to this call, the Respondent came to the scene and was talking to Ms. Horten's friends in back of the house. When he had completed his conversation with them, he told Ms. Horten he had to search her for a knife, and took her into a hallway where he put his hands up under her shirt and around her shoulders and sides. In addition, he touched her legs by putting his hands on both sides of each leg, running them all the way up to the crotch. After this search, Respondent took Ms. Horten into her apartment where he searched for the knife in the kitchen. Finding nothing, he took her into the bedroom, went into her closet, and looked through her clothes as well as through her chest of drawers. Finding nothing, Respondent then had Ms. Horten roll up her skirt from both the back and the front and when she did so, pulled her panties out from the front. When he did this, he could observe her pubic area though he did not touch her there. He then had her roll up her shirt, both in the front and the back. Since she was not wearing a bra, when she rolled up her shirt front, her breasts were exposed to his view. After finishing his search, he gave Ms. Horten his card, with his name on it, and went back outside to talk to the other young people. Ms. Horten did not think that what Respondent was doing to her was appropriate, but claims that since she was not familiar with the law, she did not know she could resist. Nonetheless, she later told her mother and the neighbor who had initially called the police. This neighbor apparently filed a report with the police and Ms. Horten thereafter taped a statement as to the matters previously discussed, a typed copy of which she subsequently signed under oath. At approximately 3:50 AM on April 16, 1989, Tara D. Grey, then a 17 year old college student, was driving her car eastward on Drew Street in Clearwater, Florida when she was pulled over by the Respondent who was in a police cruiser and in uniform. Initially he did not tell her why he had stopped her, but asked for her driver's license and registration, which he took back to his cruiser. After approximately 5 minutes, he came back and told her that her license did not check out and asked for additional identification which, he claimed, did not check out either. Finally, she gave him her social security card which seemed to satisfy him. After an extended series of questions regarding her drinking, her use of illegal drugs, or her prior arrest record, all of which she denied, he required her to get out of her car, after which he administered a sobriety test to her. He then asked if he could search her car, to which she consented. While he conducted the initial search, he asked her to stand behind the car, but then requested her to take the numerous items which were on the car floor out so he could see what he was doing. At time she was wearing a miniskirt and boots, along with a sweater, and when she did what he asked of her, she had to bend over and her skirt came up in the back, giving him a broad view of her posterior. When she finished cleaning out her car to his satisfaction, Respondent asked her with whom she lived and why she had other clothing in the car. After several other questions, he finally told her, after about 45 total minutes of interview, that she had been stopped because she was speeding. He then indicated he would have to follow her to her friend's home, (the place to which she was in progress when stopped), and kept her license while he followed her there. Before he allowed her to go into the house, he indicated he would have to frisk her, and in doing so, had her put her hands up on the top of his car. He then ran his hands across her shoulders and across her hips and bottom, but did not touch either her pubic area or her breasts. He also checked her socks and in doing that, felt her legs down in that area but did not run his hands up over her bare legs. After finishing the frisk, he drove off and Ms. Grey went into her friends's home. In April, 1990 Louise Ann Frattaruolo, Respondent's former mother-in- law, received a letter through the mail which, when opened, indicated that her husband had broken his word and must pay the penalty. The letter then went on to indicate that all the Frattaruolos must die. This letter was unsigned, but Mrs. Frattaruolo turned it over to her daughter, a police officer, who released it to the Clearwater Police Department. A latent fingerprint was developed on the envelope in which the letter was sent, which was subsequently analyzed and determined to be that of the Respondent. From the date of the postmark on the letter, the day it was mailed, to the day the fingerprint identification was made, there was absolutely no opportunity for Respondent to have handled either the letter or the envelope. Therefore, it is concluded that the envelope containing the letter was at least touched by the Respondent prior to mailing, and was most likely mailed by him. On October 30, 1990, Patrick J. Lombardi was working as a security officer at the Clearwater Mall and was approached by a man and lady who pointed out an individual allegedly exposing himself on a bench within the mall. Mr. Lombardi got his supervisor, Mr. O'Dell, and both officers observed an individual, subsequently identified as the Respondent, sitting on a bench, wearing bright yellow jogging shorts that were split up the sides. They observed him sitting in such a manner whereby whenever a woman or a group of women walked by, he would open his legs and then slap them together, and both officers observed that when he did this, his genitalia, which had been released from the inner lining of his shorts, would fall out onto the bench. To insure they were not making a mistake, the two officers went to one of the jewelry stores in the mall and contacted Janine M. Edwards, a clerk who they asked to walk by the individual and tell them what she observed. When she did so, she observed the Respondent open his legs and expose himself to her. She noted that the liner of his shorts had been pulled to one side allowing his penis and testicles to be fully exposed. She also observed Respondent do this in front of a couple, and she is convinced it was not accidental. Respondent appeared nervous and when she first saw him, he was hunched over. When he saw her, however, he turned toward her and opened his legs to show her his private parts. It is concluded, therefore, that his actions were intentional. Shortly thereafter, Respondent was observed by a mall employee leaving the mall and getting into a blue Ford automobile. The employee got the license number of the vehicle which was subsequently traced to the Respondent. Thereafter, Sgt. Joseph Tenbieg, of the Clearwater Police Department, put together a package of 5 or 6 photographs of individuals, including Beck, all of whom resembled the Respondent, which he showed, independently, to Officers O'Dell and Lombardi, as well as to Ms. Edwards. All three identified the photograph of the Respondent, which was taken from his police personnel records, as the individual who was exposing himself in the mall.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered revoking the Respondent, Kenneth E. Beck's certification as a law enforcement officer. RECOMMENDED this 29th day of April, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1991. COPIES FURNISHED: Elsa Lopez-Whitehurst, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Kenneth E. Beck 28 Valencia Circle Safety Harbor, Florida 34695 James T. Moore Commissioner Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 Jeffrey Long Director Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel FDLE P.O. Box 1489 Tallahassee, Florida 32302
The Issue Whether the Respondent committed the offense alleged in the Administrative Complaint dated March 9, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Commission is the state agency responsible for certifying and revoking the certification of law enforcement officers in Florida. See §§ 943.12(3) and 943.1395, Fla. Stat. (2004). Mr. Rendon is a Florida-certified law enforcement and corrections officer. Mr. Rendon's first contact with Sheila Smith and Kimberly Ann Sturtz, Mrs. Smith's daughter, was in November 1998, when Ms. Sturtz called the police after an argument with her mother. At all times material to this proceeding, Ms. Sturtz was a child under 16 years of age. In December 1998, Mr. Rendon was dispatched to the Smith residence when Mrs. Smith called the police as a result of a fight with her son, Travis Caley. Mr. Rendon arrested Travis on December 2, 1998, and Travis was subsequently placed in a foster home. Mr. Rendon developed an interest in Travis and the Smith family, and he periodically contacted a representative of the Florida Department of Children and Family Services to check on Travis's situation. Mr. Rendon also talked to Travis on the telephone. Mr. Rendon often telephoned Mrs. Smith or went to the Smith residence to give her news about Travis, and Mrs. Smith often telephoned Mr. Rendon. Mr. Rendon had Mrs. Smith's and Kimberly's cell phone and pager numbers, and he used a code when he paged them, so they would know to call him back. He frequently paged Kimberly during the day. Mr. Rendon visited the Smith residence several times when Mr. and Mrs. Smith were home. He also stopped at the Smith residence when Mr. and Mrs. Smith were not at home and Ms. Sturtz was at the residence alone or with a friend named Alicia Cox, who lived across the street from the Smith residence. During these visits, Ms. Sturtz and Mr. Rendon talked but generally stayed outside the house, on the porch or in the yard. Mr. Rendon's visits to the Smith residence were not as frequent between February and April 1999, during the time Mr. Rendon was assigned to patrol an area of Lake County that was a considerable distance from the Smith's residence. His visits increased after April 1999, when he was assigned to patrol an area that included the Smith's residence. During this time, he often visited Ms. Sturtz when her parents were not at home. On May 27, 1999, Mr. Rendon stopped at the Smith's residence at a time when Ms. Sturtz was alone. Mr. Rendon and Ms. Sturtz sat on the porch for a while, talking. During this conversation, Ms. Sturtz told Mr. Rendon that she had a "crush" on him. Ms. Sturtz and Mr. Rendon subsequently entered the house, where Mr. Rendon asked Ms. Sturtz what she would do if he kissed her; Ms. Sturtz told him that she would probably kiss him back. Ms. Sturtz's back was against the wall inside the door, and Mr. Rendon held Ms. Sturtz's hands over her head; he kissed her; asked her to stick out her tongue so that he could suck on it; ran his hands down the sides of her body, grazing the sides of her breasts; lifted her skirt; licked and kissed the area around her navel; and stuck his tongue in her navel. Ms. Sturtz became frightened and asked Mr. Rendon to stop, which Mr. Rendon did. Ms. Sturtz observed that Mr. Rendon appeared to be sexually aroused during the incident and had a wet spot on the front of his trousers. Ms. Sturtz was 14 years old at the time of this incident. Mr. Rendon was arrested on June 9, 1999, for lewd and lascivious conduct with a child under 16 years of age. On or about October 13, 2000, Mr. Rendon entered a plea of nolo contendere to two charges of misdemeanor battery, defined in Section 784.03, in the Circuit Court of the Fifth Circuit in Lake County, Florida. These charges were based on the incident involving Ms. Sturtz that took place at the Smith residence on May 27, 1999. A judgment was entered adjudicating Mr. Rendon guilty of these crimes. The evidence presented by the Commission is sufficient to establish that Mr. Rendon failed to maintain good moral character. He touched Ms. Sturtz in a lewd and lascivious manner on May 27, 1999, and his actions also constituted misdemeanor battery.2
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding that David Rendon failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes (1999), and that his certification as a law enforcement officer should be revoked. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2005.
The Issue The issue presented in this case is whether there is just cause for the City of Cape Coral's decision to terminate the employment of Hector Calderon, a police officer with the City of Cape Coral Police Department.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: The City of Cape Coral (the "City") employed Hector Calderon as a police officer in the operations division of the Cape Coral Police Department (the "Department") from January 11, 1997 through January 11, 2002, the effective date of his termination. Officer Calderon was employed as a patrol officer, and his main duties were traffic enforcement during the 6 p.m. to 6 a.m. shift. On October 29, 2001, Sgt. Keith Perrin of the Department received a telephone complaint concerning Officer Calderon from a woman named Cheryl Sugar. Ms. Sugar told Sgt. Perrin that Officer Calderon had lived with her over the past several months. She offered information about narcotics usage and deviant sexual behavior by Officer Calderon, both on and off duty. She specifically alleged that Officer Calderon had been taking cocaine. Ms. Sugar also told Sgt. Perrin that Officer Calderon had been seeing a woman named Nicole Beougher, whom he had met working at a Circle K store when he stopped there during his work shift. Ms. Sugar alleged that Officer Calderon had been taking Ms. Beougher on "ride-alongs" in his police car. Ms. Sugar was angry at Officer Calderon because she had only recently discovered that he had also been dating Ms. Beougher. She and Ms. Beougher had spoken to each other, and realized that Officer Calderon had been deceiving both of them. Sgt. Perrin made a report to Lt. Michael Maher, the Department's head of internal affairs. Lt. Maher contacted Ms. Sugar by telephone on the morning of October 30, 2001. Ms. Sugar reiterated her allegations and agreed to come in later that afternoon to give a sworn statement and submit to a polygraph examination. However, she telephoned Lt. Maher at 3 p.m. and stated that she had placed herself in an "awkward position" and could not give a statement after all. From that point forward, Ms. Sugar declined to cooperate with the Department, despite frequent attempts by Lt. Maher to secure her testimony. On or about November 3, 2001, officers from the Department responded to a domestic dispute call involving Officer Calderon and Ms. Sugar. The officers on the scene noted that Officer Calderon acted unusually. He was upset, shaken, and verbally abusive. He refused to leave the scene until Lt. Maher gave him a direct order to leave or go to jail. This incident, coupled with Ms. Sugar's earlier complaint, led Lt. Maher to place Officer Calderon on administrative leave and send him for a "fitness for duty" psychological evaluation. The evaluation was conducted by a psychologist on November 8, 2001. The psychologist concluded that Officer Calderon was not capable of returning to duty. Officer Calderon was placed on administrative desk duty and his patrol vehicle was taken from him. Officer Calderon's patrol vehicle was assigned to another officer, Robert Slager. Following routine procedure, Officer Slager inventoried the vehicle to assure that Officer Calderon's personal property was accounted for and returned to him. While conducting the inventory, Officer Slager discovered sixteen driver's licenses in the vehicle. The licenses were in a cup holder, in plain sight. Upon investigation, Lt. Maher determined that the driver's licenses had been confiscated by Officer Calderon during traffic stops over a four-year period. Department procedure called for confiscated licenses to be turned in to the records division along with the citation, but Officer Calderon simply kept them in his vehicle. Lt. Maher questioned Officer Calderon as to why he kept the licenses. Officer Calderon's only explanation was that they were his "personal collection." Several officers testified that they had heard of the practice of keeping confiscated driver’s licenses as trophies, but all denied that they did it themselves. They could not or would not name any other officer who indulged in the practice. Officer Calderon kept the licenses in plain sight, and his vehicle was inspected by his superiors on a regular basis, yet no disciplinary action was taken against him concerning the confiscated licenses until this investigation developed. Despite Ms. Sugar's failure to cooperate, Lt. Maher continued investigating her allegations. Ms. Sugar had provided the name of Nicole Beougher, and Lt. Maher contacted Ms. Beougher, who provided a sworn statement and testified at the hearing. In October or November 2000, Ms. Beougher was working nights in a Circle K store in Officer Calderon’s patrol zone. She was 18 years old. Officer Calderon came in, and they began talking. He started coming in frequently to talk to her. He gave her his business card, adding a handwritten note with the code for his voice mailbox at work. During their conversations, Ms. Beougher mentioned that she had never ridden in a police car, and Officer Calderon offered to take her on a "ride-along." At the time, the Department had a "ride-along" program as part of its community outreach. The program encouraged citizens to ride with patrol officers as they conducted their daily course of duties. Interested persons were required to fill out a release of liability form and permit the Department to run a criminal background check. By Department policy, each citizen was limited to one ride-along every six months. Ms. Beougher completed the form and went on a ride- along with Officer Calderon on Christmas Eve 2000. He picked her up at her mother’s house at 6 p.m. and drove to the police station for roll call. Then Officer Calderon and Ms. Beougher went out on the road on his patrol duties. They discussed personal matters, such as whether Ms. Beougher had a boyfriend. At around midnight, they drove to a secluded area on the north end of Cape Coral. Officer Calderon stopped the car. They both got out and walked to the rear of the car. Officer Calderon began kissing Ms. Beougher. Nothing further of a sexual nature occurred. Officer Calderon dropped Ms. Beougher off at her mother's house at approximately 5:30 a.m. on Christmas Day. In January 2001, Officer Calderon and Ms. Beougher began seeing each other regularly. On May 6, 2001, Officer Calderon moved in with Ms. Beougher. While they lived together, Officer Calderon, on duty, would stop by their apartment five or six times per shift, sometimes for as long as 45 minutes. On one or two of these occasions, they engaged in oral sex. While they lived together, Ms. Beougher rode along with Officer Calderon on his work shift on 15 to 20 different occasions. Ms. Beouger never filled out another release of liability form, and the number of ride-alongs was clearly in violation the Department's policy. However, the evidence at hearing established that the Department's enforcement of its policy was lax. Officer Calderon's shift sergeant saw Ms. Beougher with him on more than one occasion and made no inquiry. On one or two of these unauthorized ride-alongs, they drove to a secluded area of northern Cape Coral, and Ms. Beougher performed oral sex on Officer Calderon. One evening while they were living together, Officer Calderon brought home a small amount of cocaine and offered to use it with Ms. Beougher. She was afraid to use it, fearing that Officer Calderon was trying to set her up for an arrest. Ms. Beougher said she would use it if he did first. Officer Calderon snorted the cocaine through a rolled dollar bill. Ms. Beougher then joined him. From that point forward, Officer Calderon and Ms. Beougher used cocaine frequently on weekends when Officer Calderon was not working. Officer Calderon and Ms. Beougher frequently spent weekends at a Motel 6 in North Fort Myers. They did this to get away from their roommate and to be closer to the clubs downtown. They would drink heavily at the clubs, to the point where Ms. Beougher could not remember much of what occurred. They would bring other people, male and female, back to the motel and have sex with them. They also used cocaine while at the motel. Officer Calderon sometimes worked details at a bar called the Hired Hand Saloon, a place he also frequented when off duty. A prior acquaintance named Roger Montgomery worked there as a bouncer. Ms. Beougher testified that Mr. Montgomery was the source of Officer Calderon's cocaine. At the hearing, Mr. Montgomery confirmed the details of Ms. Beougher's testimony. At the Hired Hand, Mr. Montgomery would give Officer Calderon "bumps" of cocaine, i.e., small amounts sufficient for him and Ms. Beougher to get high. On at least two occasions, Mr. Montgomery sold $50 worth of cocaine to Officer Calderon. Mr. Montgomery never gave or sold cocaine to Officer Calderon while he was on duty. Mr. Montgomery never saw Officer Calderon appear to be under the influence of alcohol or any other drug while he was on duty. Mr. Montgomery never actually witnessed Officer Calderon taking cocaine, though he was certain that he saw him high on cocaine. Ms. Beougher testified that she and Officer Calderon used cocaine while at the Hired Hand. On one occasion when Officer Calderon was off duty at the Hired Hand, he asked Mr. Montgomery for cocaine. Mr. Montgomery did not have the cocaine on his person, but did have some in the ashtray of his truck. He gave Officer Calderon the keys to his truck, and Officer Calderon went out to the truck. When Mr. Montgomery later went out to his truck, the cocaine was gone. Officer Calderon invited Mr. Montgomery to the Motel 6 to use cocaine and have sex with Ms. Beougher and him. Mr. Montgomery wanted to go, but couldn't. Mr. Montgomery testified that Ms. Beougher, under the influence of alcohol and cocaine, performed oral sex on both him and Officer Calderon at the Hired Hand. Ms. Beougher could not recall this incident, but did not deny that it might have happened while she was under the influence. One evening at the Hired Hand, Officer Calderon gave Mr. Montgomery a bag of marijuana. Officer Calderon told him that he had confiscated the marijuana from a group of teenagers while on duty. Officer Calderon had earlier shown the marijuana to Ms. Beougher and told her the same story. On one occasion, Officer Calderon asked Mr. Montgomery to get him the drug Ecstasy. Mr. Montgomery made the attempt but was unable to get it because his seller's supplier had been arrested. Officer Calderon and Ms. Beougher took the drug Oxycontin on several occasions. Officer Calderon procured the drug from a person unknown to Ms. Beougher. Officer Calderon had no car other than his patrol vehicle, which he was authorized to take home. Ms. Beougher testified that while off duty, Officer Calderon drove the patrol vehicle under the influence of alcohol on several occasions. He also allowed Ms. Beougher to drive the police vehicle. Sometime in August 2001, Officer Calderon moved out of Ms. Beougher's apartment. He told Ms. Beougher he was moving because there had been a drug bust in the apartment next door, and he was concerned that the Department would somehow associate him with it. Officer Calderon's move also coincided with his learning that Ms. Beougher was pregnant with twins. Ms. Beougher was certain that Officer Calderon was the father. Officer Calderon did not deny it, but wanted to make certain prior to undertaking support obligations. The results of a DNA test were pending at the time of the hearing. Ms. Beougher testified that her drug use ceased when she learned she was pregnant, and that she never saw Officer Calderon take illegal drugs after she stopped taking them. During the investigation, Lt. Maher discovered that Officer Calderon failed to notify the Department of several address changes, in violation of General Order D-1, Section III.18. Officer Calderon admitted to the sexual allegations that occurred at the Hired Hand and the Motel 6. He denied having sex with Ms. Beougher in his patrol car, and denied that he had ever used any illegal drugs. Officer Calderon alleged that Ms. Sugar and Ms. Beougher were bitter about his seeing them both at the same time, and thus concocted a false tale of his drug usage. He contended that Mr. Montgomery, a known drug dealer, had been intimidated through fear of arrest into testifying, and that Mr. Montgomery was sexually involved with Ms. Beougher and thus part of the conspiracy. Officer Calderon's contentions about the opposing witnesses cannot be credited. Neither Ms. Beougher nor Mr. Montgomery knew the other's last name, and both credibly testified that their only involvement with each other was through Officer Calderon at the Hired Hand. Ms. Beougher admitted to being angry at Officer Calderon, but credibly denied that she invented her story of drug usage. Adding to her credibility was that she freely implicated herself in the illegal activities that occurred, rather than portraying herself as an innocent bystander. Mr. Montgomery admitted that his motive for testifying was fear of prosecution for his drug dealings. He was reluctant to testify against Officer Calderon. He did not want to get Officer Calderon in trouble. His testimony was credible and corroborated that of Ms. Beougher as to the particulars of occurrences at the Hired Hand. Officer Calderon had a prior disciplinary history, which Chief Gibbs testified played a role in his decision to terminate Officer Calderon. In 1999, Officer Calderon was given a eight-hour suspension without pay for failing to report the discharge of his service revolver. He and his live-in girlfriend at the time, Allison Gimello, were involved in a domestic disturbance. When the police arrived, they discovered bullet holes in a closet door. Ms. Gimello told police that Officer Calderon had fired his police weapon after threatening to kill her. She later changed her story, saying that she had accidentally fired the gun. Because of this ambiguity, Officer Calderon was disciplined only for not reporting the discharge of his weapon. He did not file a grievance or appeal his suspension. Also in 1999, Officer Calderon was disciplined for showing a photograph of himself, naked with an erection, to female employees of the Department. Without grievance or appeal, Officer Calderon received a 24-hour suspension without pay. Upon completion of the internal affairs investigation in the instant case, Officer Calderon was charged with the following: failure to notify the Department of an address change; loafing while on duty; use of a controlled substance while off duty; purchase and possession of a controlled substance while on and off duty; intentional violation of state law; conduct unbecoming a public employee; using the prestige of his official position or the Department's time, facilities, equipment or supplies for private gain; improper performance of his duties; engaging in sex while on duty and in a City of Cape Coral police vehicle; malfeasance or misfeasance in office; perpetration of an act or conduct which causes substantial doubt concerning an officer's honesty, fairness, or respect for the rights of others or for the laws of the state, irrespective of whether such act or conduct constitutes a crime; and violation of the rules of conduct of the Criminal Justice Standards and Training Commission ("CJSTC") by failing to maintain good moral character and having a pattern of conduct not consistent with state standards. Lt. Maher's internal affairs report, dated December 5, 2001, sustained all of the charges except loafing on duty and use of a controlled substance. Lt. Maher dropped the loafing charge after consulting with Officer Calderon's immediate superiors, who did not see a problem with his frequent visits to the Circle K store or to the apartment he later shared with Ms. Beougher, provided his productivity was unaffected. It was conceded at the hearing that Officer Calderon was one of the most productive officers in the Department throughout his employment. Lt. Maher dropped the drug usage charge because the only drug test given to Officer Calderon came back negative. At the outset of the investigation, Lt. Maher wanted to test Officer Calderon for drugs but was advised by the City attorney that he lacked reasonable suspicion to order a test. By the time his investigation built reasonable suspicion, Officer Calderon had been placed on administrative duty and was aware that the Department was looking into his activities. Nonetheless, Lt. Maher believed that, without a positive drug test, he could not sustain a charge of drug usage. At the hearing, Officer Calderon challenged the alleged inconsistency between the Department's finding there was insufficient evidence to support that he used drugs, but finding the same evidence sufficient to support that he bought and/or possessed drugs. This argument is rejected. The evidence at hearing established that Officer Calderon both possessed and used drugs. Lt. Maher's decision to drop one of the potential charges does not change the fact that the other charge was proven. Lt. Maher's report was forwarded to Officer Calderon's immediate superiors for a recommendation on corrective action. One of the superiors, Lt. Craig Durham, recommended termination. Officer Calderon's immediate superior, Sgt. John Dickman, recommended a 30-day suspension without pay or benefits. These recommendations then went to the division commander, Major B. A. Murphy, who recommended termination and forwarded the file to Chief Gibbs for his review on December 12, 2001. Officer Calderon elected to have the recommended discipline reviewed by a Department Disciplinary Review Board ("DDRB"). The DDRB was composed of five Department employees: two selected by Officer Calderon, two selected by the Department's administrators, and a fifth member selected by the other four. Lt. Maher presented the case for the Department. Officer Calderon presented his case in rebuttal. The DDRB then deliberated and rendered a decision. On December 19, 2001, the DDRB unanimously recommended termination. On December 21, 2001, Chief Gibbs entered a Final Notice of Disciplinary Action terminating Officer Calderon's employment. Officer Calderon sought and received an appeal of this decision with the City Manager. On January 10, 2002, Interim City Manager Howard Kunik upheld the decision to terminate Officer Calderon's employment.
